Allahabad: The Allahabad High Court has held that under the Bharatiya Nyay Sanhita (BNS), 2023, the age of consent for sexual intercourse is 18 years, and sexual acts with a girl below this age, with or without her consent, constitute rape. A division bench of Justice J.J. Munir and Justice Sanjiv Kumar, while disposing of a habeas corpus petition, refused to release a 17-year-old mother from a children’s home into the custody of her mother-in-law, observing that marriage to the minor is not a defence against the offence of rape under the new penal law.
Case Background
The habeas corpus petition was filed by a minor girl, referred to as ‘A’, and her two-month-old son. The petition, supported by an affidavit from the minor’s mother-in-law, sought her release from the Rajkeeya Bal Grih (Balika) in Kanpur Nagar.
According to the facts presented, ‘A’, whose date of birth is 05.10.2008, married a man on 03.07.2025, when she was three months short of her 17th birthday. Following the marriage, her father filed a police report, leading to the registration of a crime under Section 137(2) of the Bharatiya Nyay Sanhita, 2023.
On 14.07.2025, ‘A’ gave birth to a son. Subsequently, on 22.07.2025, her husband was arrested and remanded to judicial custody. On the same day, ‘A’ was also detained by the police and sent to the Rajkeeya Bal Grih (Balika), where she is currently lodged with her infant son.
Petitioner’s Arguments
The counsel for the petitioner, S.C. Tiwari, argued for the minor’s release by placing reliance on the Supreme Court’s decision in K.P. Thimmappa Gowda vs. State of Karnataka (2011). It was contended that since the prosecutrix in that case was above 16 years of age, sex with her consent was not considered rape. The counsel further argued that as the parties were married and the wife was not below 15 years, the sexual intercourse did not amount to rape, based on Exception 2 to Section 375 of the erstwhile Indian Penal Code (IPC).
Court’s Analysis and Rejection of Arguments
The High Court rejected the petitioner’s submissions, stating they were based on a legal framework that has undergone a “sea change.”
The bench noted that the K.P. Thimmappa Gowda case was decided based on the law at that time, where the age of consent was 16 years. The court pointed out that the legal landscape has significantly evolved since then. Similarly, the argument based on the marital rape exception under the old IPC was deemed “misconceived,” as the Supreme Court in Independent Thought vs. Union of India (2017) had read down the exception to raise the age from 16 to 18 years.
The court emphasized that the present case must be adjudicated under the new Bharatiya Nyay Sanhita, 2023, which came into force on 01.07.2024. The offence in question occurred on 03.07.2025, after the BNS became effective.
The judgment quoted Section 63 of the BNS, which defines rape. Specifically, Section 63(vi) states that sexual intercourse with a girl “with or without her consent, when she is under eighteen years of age” constitutes rape. The court highlighted Exception 2 to Section 63, which clarifies: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
The bench observed, “The statutory context has much changed… Under the B.N.S., which is the successor Statute to the Indian Penal Code that has come into force with effect from 01.07.2024, the age of consent under Section 63 (vi) is stipulated to be 18 years.”
Furthermore, the court expressed concern that releasing the minor to her mother-in-law’s custody offered no guarantee against cohabitation with her husband upon his release. “Permitting a minor to cohabit with an adult would make the husband liable for offences punishable under the POCSO Act as well,” the court noted. Since the minor petitioner refused to return to her parents’ home, the only viable option was to keep her at the children’s home.
Final Decision and Directions
While denying the primary relief of release, the court addressed the “human angle” concerning the minor mother and her infant child. The petition was disposed of with the following directions:
- The petitioner shall be set at liberty from the Rajkeeya Bal Grih (Balika) on 05.10.2026, upon attaining the age of 18.
- Her mother-in-law is permitted to visit her and the child regularly, in accordance with the rules of the home, to provide emotional support, but is not allowed to bring food or eatables.
- The in-charge of the Rajkeeya Bal Grih is directed to ensure the petitioner and her child are housed in conditions conducive to their health and well-being.
- The Chief Medical Officer, Kanpur Nagar, must ensure that a doctor attends to them at least twice a month and that a paediatrician is available on call.
- The District Judge, Kanpur Dehat, is directed to assign a senior lady Judicial Officer to visit the petitioner and her child at least once a month to ensure the court’s directions are being followed and to report any violations to the High Court.
